Bush Administration Told By Congress and Court: Changing Environmental Rules to Allow Waste Dumps in Waters Violates the Clean Water Act

Representatives introduce bill to protect streams and rivers from waste fills; Federal district court says EPA cannot change regulations to allow dumps in waters


Ken Goldman
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The Bush administration’s efforts to allow coal mining companies and other industries to dispose of their wastes in waters was dealt a double blow today as both Congress and a federal court came out in opposition to the administration’s recent changes to Clean Water Act regulations.

“Today, both the legislative and judicial branches of government came out in opposition to what the executive branch did to the Clean Water Act on May 3,” said Joan Mulhern, senior legislative counsel for Earthjustice. “This should send a strong message to the Bush administration — and the public — that the administration’s attempt to undermine the Clean Water Act is not only wrong, it is illegal.”

Members of Congress today announced a proposal to overturn the Bush administration’s recent assault on laws that protect the nation’s waters — specifically, the adoption last Friday by EPA and the US Army Corps of Engineers of a new rule to allow the Corps to permit wastes to fill and destroy streams, rivers, wetlands and other waterways. Representatives Chris Shays (R-CT), Frank Pallone, Jr. (D-NJ), and a bipartisan group of House members announced at a Capitol Hill press conference that they will introduce legislation to counteract this destructive rule change. Earthjustice supports the legislation and expressed its appreciation for the Representatives’ efforts to protect water quality.

Also today, the federal district court for the southern district of West Virginia ruled against the Bush administration in a citizen suit challenge to the Corps’ permitting of valley fills associated with mountaintop removal coal mining. That ruling stated: “The Court holds that § 404 of the Clean Water Act does not allow filling the waters of the United States soley for waste disposal. Agency rulemaking or permit approval that holds otherwise is ultra vires, beyond agency authority conferred by the Clean Water Act. Only the United States Congress can rewrite the Act to allow fills with no purpose or use but the deposit of waste.”

The lawsuit was brought by a Kentucky group, Kentuckians for the Commonwealth, who were represented by Joe Lovett of the Appalachian Center for the Economy and the Environment and Jim Hecker of Trial Lawyers for Public Justice.

“To approve disposal of waste other than dredged spoil, in particular mountaintop removal overburden, in waters of the United States under § 404 dredge and fill regulations rewrites the Clean Water Act. Such rewriting exceeds the authority of administrative agencies and requires an act of Congress,” the court’s ruling said.

“Nothing is more inconsistent with the Clean Water Act than allowing the nation’s waterways to be filled and destroyed by industrial wastes – yet that is precisely what the Bush administration’s new regulation is intended to permit,” said Mulhern. “It seems the court and Congress agree.”

The legislation announced today would amend the Clean Water Act by enacting to the law the key portion of a regulation, first adopted in 1977, that prohibits the Corps from permitting industries — including coal mining companies — from filling waters with waste material. It is this ‘waste exclusion’ that the EPA and Corps removed from long-standing clean water regulations with the new rule they adopted last Friday.

In March, a dozen senior House Republicans, led by Representative Chris Shays (R-CT), wrote to President Bush, urging him to reconsider “this ill-advised and dangerous rulemaking” to allow waste disposal in waters.

They were joined on April 30 by fifty-seven Members of the House of Representatives, led by Frank Pallone (D-NJ), who sent a letter to EPA Administrator Whitman conveying their “strong opposition” to the proposed rule. “This rule change is a clear attempt to legalize the destructive practice of mountaintop removal coal mining, where coal companies literally blow the tops off of mountains and dump the waste into nearby valleys and streams,” stated the letter.

On May 1, Senators James Jeffords (I-VT) and Joseph Lieberman (D-CT) sent a letter to President Bush asking him to stop immediately his administration’s efforts to overturn this important Clean Water Act rule. The letter from the Environment and Public Works Committee Chair and the Wetlands Subcommittee Chair, respectively, stated, “the proposed rule would jeopardize the health of the nation’s streams, wetlands, lakes, rivers and other waters.”

Copies of the Congressional letters are available by contacting Earthjustice.

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